Secret treaty leaks, Mexico wants copyright extended even more than US does

Trans-Pacific Partnership could also threaten Aereo's entire business model.

About 18 months ago, we brought you the story of the Trans-Pacific Partnership (TPP), a massive free-trade agreement that has been in the works for years—in secret.

On Wednesday, a working draft of the “intellectual property chapter” of the TPP was published on WikiLeaks. Unlike previous leaks, this one is very recent—dating to the most recent negotiating round in August 2013. Importantly, it also has comments and annotations from each country, with their current position on any given provision. The next round of TPP talks is set for November 19-24 in Salt Lake City, Utah.

As we reported last year, the TPP aims to provide “comprehensive market access,” “regulatory coherence,” and, most notably for the tech community, a commitment "to ensure an effective and balanced approach to intellectual property rights among the TPP countries.” The IP chapter represents just one part of the overall treaty.

Further Reading

Not surprisingly, public interest groups, including Public Citizen and many legal scholars, have applauded the leak and have lamented many of the strong IP law provisions that the United States appears to be pushing on its trade partners.

“When you are negotiating an agreement that impacts rights ranging from access to medicine to the duration of copyright protection, you need to solicit meaningful input from broad constituencies if you want a successful outcome,” David Levine, a law professor at the Elon University School of Law, told Ars. “By leaving the flow of information in the hands of Julian Assange, the negotiators have done much to hasten TPP’s demise by underscoring the hyper-secrecy and lack of public input in the formation of law in extremely broad and controversial areas.”

Industry loves it!

The agreement is currently being negotiated among representatives of nine Pacific Rim countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. Japan, Mexico, and Canada have recently entered the negotiations as well.

“I would say it’s ACTA-plus, not ACTA redux,” Gwen Hinze, the Electronic Frontier Foundation’s (EFF) international IP director, told Ars last year. In other words, if you loved to hate the Anti-Counterfeiting Trade Agreement (ACTA), then you may love to hate the Trans-Pacific Partnership Agreement (TPP) even more.

The United States Trade Representative, the executive branch agency tasked with expressing the American position in these treaty negotiations, declined to comment on the authenticity of the document, but it did not deny it either.

“The intellectual property negotiation in the Trans-Pacific Partnership discussions has not been completed, and a final text has not been agreed to,” Carol Guthrie, a USTR spokesperson, told Ars. “We are working with Congress, stakeholders, and our TPP negotiating partners to reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values, including by seeking strong and balanced copyright protections, as well as advancing access to medicines while incentivizing the development of new, life-saving drugs.”

“Intellectual property-intensive industries account for approximately one in every four American jobs, 60 percent of total US exports, and over one-third of US GDP,” said David Hirschmann, president and CEO of the Global Intellectual Property Center at the US Chamber of Commerce, in a statement in 2012. “Pursuing high-standard, comprehensive, and commercially meaningful intellectual property obligations will not only benefit US interests but will also help bring investment, innovation, and jobs to all TPP economies.”

Letting the air out of Aereo

What are the specific parts that stand out? One, experts say, could jeopardize the entire business model of Aereo, the new Internet TV startup. Another puts the onus of copyright enforcement on ISPs rather than on the copyright holders.Yet another would extend copyright law in other countries to fall in line with the United States, where copyright protection lasts for the life of the author plus 70 years. Many of the proposals now are the same as those that scholars and other legal experts had been concerned would appear last year.

One section that jumps out immediately is an American proposal that would impose new restrictions on television retransmission.

[US propose: Notwithstanding Article QQ.G.16 [limitations and exceptions] and Article QQ.G.14.3(b) [over the air broadcasting reference], no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.]

Should that language be accepted—and it’s not clear if it will be, as no other countries have commented so far—that could throw a wrench in Aereo's business plan. The company claims that employing thousands of tiny antennas to capture over-the-air broadcasts for each customer for later viewing—creating a de facto DVR—is perfectly legal. Aereo recently won a major victory at the Second Court of Appeals. ABC, Disney, CBS, NBC, and other studios and TV stations have asked the Supreme Court to hear this case.

"The question presented is: whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet," write the petitioners.

Experts say that this type of language appears to be directed at Aereo-like business models and also perhaps at sites like Rojadirecta, a Spanish site accused of copyright infringement of sports games. (The United States dropped a case against Rojadirecta last year and returned the seized domain names.)

“The broadcasters would certainly argue that [this TPP provision] would [outlaw Aereo],” Jonathan Band, of Policy Bandwidth, told Ars. “But Aereo (and the Second Circuit) would say that the Aereo service is not retransmitting the signal. Rather, the user is transmitting his copy to himself.”

A century of protection

Another provision, supported by the US, Australia, and a few others, appears to impose a six strikes-style regime that could ultimately lead to customers suspected of copyright piracy being kicked off their ISP. The provision advocates:

(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers

Some legal scholars are hoping that it won’t come to that, though.

“It’s something that can easily be implemented in a very different way,” Sherwin Siy of Public Knowledge told Ars. “I would want to argue that it does not mean the same thing as Six Strikes. What we’ve got in the [Digital Millennium Copyright Act] has been interpreted by US courts to mean a certain thing, and we’re comfortable with that. Maybe in other countries it’s how many accusations you’ve got, which is exactly what might take you down that road.”

Finally, a common complaint of the TPP is that it would force other countries to impose an American-style copyright term, which would put a copyright hold on the life of the author plus 70 years. Curiously, Mexico wants to take this a step further and push that limit to 100 years. For works created by a corporation, the United States wants 95 years, while all other countries want 70 years. Mexico wants 75 years for corporate works. Under American law at present, corporate works are protected for 120 years under the so-called “Mickey Mouse Provision” of the Copyright Term Extension Act (CTEA) of 1998.

However, it’s still unclear if the act of leaking the recent draft will have any impact on the negotiations as a whole. After all, they have continued largely unabated for years already.

“Given how much text remains disputed, the negotiation will be very difficult to conclude,” said Peter Maybarduk, a spokesperson for Public Citizen, in a statement (PDF). “Much more forward-looking proposals have been advanced by the other parties, but unless the US drops its out-there-alone demands, there may be no deal at all.”

Unsurprisingly, the Australian government is unashamedly looking to thoroughly screw its own citizens over. We already get hammered with excessive price increases, now we get to contend with the broken US IP laws as well!

Its interesting how easily the general populous are distracted from these issues.

But if some random celebrity is off twerking their way around the world then that's big news and the only thing worth knowing about.

Unsurprisingly, the Australian government is unashamedly looking to thoroughly screw its own citizens over. We already get hammered with excessive price increases, now we get to contend with the broken US IP laws as well!

Its interesting how easily the general populous are distracted from these issues.

But if some random celebrity is off twerking their way around the world then that's big news and the only thing worth knowing about.

The agreement is currently being negotiated among representatives of nine Pacific Rim countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. Japan, Mexico, and Canada have recently entered the negotiations as well.

The term "representative" carries with it the implication that the people involved in this process are acting on behalf of the citizens of those countries.

A negotiation of this sort, conducted in such secrecy, cannot really have such a term applied to it.

Besides, if they had really thought about it they would include representatives from the Internet. That group of people is going to have far greater influence on what happens with information, regardless of the ink on a page.

They whole reason they are being so extra secretive about it because the last time they tried, it blew up in their faces due to massive public outcry. They are trying to sneak it in under the radar this time. I fear unless there is yet again another public and massive outcry, the governments involved will get it passed this time around. Worse yet it shows they aren't giving up on this whole agenda. How many times will it take before the public runs out of steam and the government eventually gets it passed?

I wish I knew how we could rid ourselves of a government that thinks its citizens too stupid to participate in something that so directly affects us. What possible reason could there be to negotiate an IP treaty in secret, other than that they know how what they're negotiating will outrage the public. I understand that it's the copyright holders who buy the politicians, and not individual voters, but nevertheless it seems like our elected officials would want to at least pay lip service to the concept of democracy.

I agree with the poster who commented about "hope and change." I've never been more disappointed by someone I voted for, and I've been voting since the Jimmy Carter days. Hope and change indeed - what we've got is the fourth term of George and Dick. (But at least George and Dick didn't try to hide their true colors).

“Intellectual property-intensive industries account for approximately one in every four American jobs, 60 percent of total US exports, and over one-third of US GDP”

[Citation needed]

I hate seeing numbers like this pulled out of a hat.

I just "love" their propaganda.It is really funny to look at the industry that characterizes itself as an industry that is inventive and intelectual yet their propaganda does not make any sense at all. Are they that bad in this "inventive" and "intelectual" part of their work or there really doesn't exist any argument they can use in their defense?

Couple of weeks ago there was a documentary about IP protection on our public television. Two main premises of this show were:

1. IP theft is the new War on Drugs and we will all be sorry that we didn't listen to them when they were warning us about it.2. It is really bad for economy if someone sells you $300 Dr. Dre earphones for mere $30 directly from factory that produces them.

They whole reason they are being so extra secretive about it because the last time they tried, it blew up in their faces due to massive public outcry. They are trying to sneak it in under the radar this time. I fear unless there is yet again another public and massive outcry, the governments involved will get it passed this time around. Worse yet it shows they aren't giving up on this whole agenda. How many times will it take before the public runs out of steam and the government eventually gets it passed?

It is sad that our own government is so broken that it will try to undermine the will of the people more than once in the same way. The first time you can make excuses and dismissals but going at it again without even taking a break? That's openly hostile, IMO.

(Like, you know, the Constitution is supposed to require of Treaties. Not supposed to be able to escape that requirement by calling it a "partnership". This administration is good at the word games, though.)

We need copyright to ensure artists are able to make a living and are encouraged to contribute their work. Having said that I believe the copyright periods that currently exist in some countries and are proposed at TPP are far longer than necessary to achieve those goals.

Respect for copyright diminishes as the length of the copyright period grows. Having a law that's badly out of sync with public opinion can only lead to widespread disregard of that law.

I believe all works should enter the public domain while they are still relevant. That means the whole concept of copyright tied to the lifespan of the author is illogical. A young artist should live long enough to see their work pass from their hands.

I feel 50 years is a reasonable upper limit for any copyright and there should be some provisions to address the power imbalance between individuals and corporations.

We need copyright to ensure artists are able to make a living and are encouraged to contribute their work. Having said that I believe the copyright periods that currently exist in some countries and are proposed at TPP are far longer than necessary to achieve those goals.

Respect for copyright diminishes as the length of the copyright period grows. Having a law that's badly out of sync with public opinion can only lead to widespread disregard of that law.

I believe all works should enter the public domain while they are still relevant. That means the whole concept of copyright tied to the lifespan of the author is illogical. A young artist should live long enough to see their work pass from their hands.

I feel 50 years is a reasonable upper limit for any copyright and there should be some provisions to address the power imbalance between individuals and corporations.

How does copyright protection of lifetime+75 years encurages authors to do more work?

I am software developer and all I got was a salary for my work. It would be amazing if, like Stephen King, I and three generations of my descendants get paid even after I quit my job just because someone is using the software I wrote a line of code in.

Sadly, it's par for the course whether you're in business, law, government, or public relations.

Does "no new taxes" mean "maybe some new taxes"? Is a blowjob really sex or does it depend on your definition of the word "is"? Is it torture or "enhanced interrogation"? Kidnapping or "extraordinary rendition"? Treaty or "partnership"?

When the interests of some people conflict with the interests of those that keep them in office, they'll find all sorts of weaselly ways to define actions that could be seen as illegal (or at least inappropriate) in order to minimize backlash or at least pretend that law carries any weight as opposed to the reality where if enough people in charge decide something is a good idea, they'll find a way to do it.

Unsurprisingly, the Australian government is unashamedly looking to thoroughly screw its own citizens over. We already get hammered with excessive price increases, now we get to contend with the broken US IP laws as well!

Its interesting how easily the general populous are distracted from these issues.

But if some random celebrity is off twerking their way around the world then that's big news and the only thing worth knowing about.

Blimey, they have brass balls the size of the moon: "However, a spokesman for Mr Robb said the treaty negotiations would remain confidential but insisted there had been "a lot of consultation across all industry sectors that could be impacted by the agreement".

I.e. No need to worry about the impact this could have on Australians! We asked a bunch of IP owning companies, and they say the treaty looks good! In fact the treaty is do good we're not going to show it to normal Australians until it's been signed.

This shadowynegotiating away of rights would in a slightly better world bring down a government.

Sadly, this has zero chance of failing. The oligarchs paid a shitton of money to draft this thing in secret and to purchase the respective national political systems--it'll be ramroded through without the public even knowing. For those saying "but that's unconstitutional," you are right, but that never mattered.

I voted for hope and change..... twice! WTF Obama!? At no time did I believe I was voting for... for... whatever this is.

When you voted for hope and change, you didn't vote for Obama, did you? I mean, the first time, I get it... quite the PR stunt. The second time, well... fool me once.

I do get the feeling that a lot of the people who voted for Obama a second time would happily repeal term limits so they could blindly vote for him a third time while claiming, "he is not as bad as that other guy!".

TPP is supported by every major corporation in the USA. Obama has shown that - like Romney - he will support any major corporation before he will care a whit for any of his real constituents. The guy is a complete con artist. You want hope and change, vote for a third party.

EDIT: Please, downvote me if you disagree with me... but how about you respond in the comments with a solution, because voting for the "least bad choice" has very clearly not been working.

It's so cute how the commoners think they should have some say in how they're governed...

/s

Seriously, though. Let's get all "SOPA blackout" on this $#!+. You wanna get the attention of every college student in the [country]world? Make it so they can't access Wikipedia for a day again. That actually kinda sorta worked last time.

I voted for hope and change..... twice! WTF Obama!? At no time did I believe I was voting for... for... whatever this is.

When you voted for hope and change, you didn't vote for Obama, did you? I mean, the first time, I get it... quite the PR stunt. The second time, well... fool me once.

I do get the feeling that a lot of the people who voted for Obama a second time would happily repeal term limits so they could blindly vote for him a third time while claiming, "he is not as bad as that other guy!".

TPP is supported by every major corporation in the USA. Obama has shown that - like Romney - he will support any major corporation before he will care a whit for any of his real constituents. The guy is a complete con artist. You want hope and change, vote for a third party.

Until the US changes its electoral system to something other than FTPT, all voting third-party does is take votes away from the lesser of the two big evils. I say this as a Canadian, where we have more than two large parties, but where voting still comes down to looking at who the top two candidates are in your riding and voting for the least bad of the two.

I'll propose something. If the purpose is to protect the author and their family, the limit for personal copyright should be the heir's lifetime. That's good enough for the next generation and in most cases will result in less years than the current status.

""The question presented is: whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet," write the petitioners."

It's a good thing that that is not Areo's model then. Somehow I suspect it is just another attempt to try to fool the judges, RDF to the max.

To all those complaining about the lesser of two evils and bad government. Elections happen every two years and it always mystifies me as to why people don't vote for a third party like the Greens. Sure, the pay-off might take 20 years, but you'll probably still be alive then.

Unsurprisingly, the Australian government is unashamedly looking to thoroughly screw its own citizens over. We already get hammered with excessive price increases, now we get to contend with the broken US IP laws as well!

Its interesting how easily the general populous are distracted from these issues.

But if some random celebrity is off twerking their way around the world then that's big news and the only thing worth knowing about.

You're forgetting about the last IP treaty Australia signed with the US, or at least the last one that got any publicity.

That treaty for those who don't know or remember was unabashedly in favor of the US, in fact the only group who said it was fair was the setting government.

Given how much trouble the current Australian government is likely going to be in over their plans to scrap the carbon tax if this grows legs it could get them into real trouble

The length of these copyright terms is just ridiculous. The next time someone asks for a 100-year copyright, offer them a 100x return on their investment in 100 years if they'll just loan you 100 dollars today. Great deal right?

I voted for hope and change..... twice! WTF Obama!? At no time did I believe I was voting for... for... whatever this is.

I don't want to conclude that you voted for vacuous rhetoric. I think Obama does fine in the "hope" department, but I'm not sure how effective he's been as a president. He's just not the LBJ "knock their heads together until they cooperate" type. Does Obama have what it takes to outflank vested interests and blinkered bureaucrats?

Jobs?!? This is to create jobs? Like hell it is! This is to prop up a utterly failed business model, block competition, and maintain perpetual ownership over ideas. It's also completely insane that no works created in my lifetime will ever transfer to the public domain. That's just criminal. They're stealing our culture so they can own it and then sell it back to us. The more content that's created under the protection of copyright, the more of our culture we can't access without emptying our wallets and I'm damned sick of it. Next up, they'd be demanding that all public domain works will be up for grabs to claim under copyright.

There are two kinds of people in this world. There are the ones that own the resources and there are the ones that need those resources. Those that own the resources use it as leverage to extract wealth from the needy and concentrate it at the top of the economic pyramid. This has to stop right now. That pyramid needs to be stomped flat.

I voted for hope and change..... twice! WTF Obama!? At no time did I believe I was voting for... for... whatever this is.

I don't want to conclude that you voted for vacuous rhetoric. I think Obama does fine in the "hope" department, but I'm not sure how effective he's been as a president. He's just not the LBJ "knock their heads together until they cooperate" type. Does Obama have what it takes to outflank vested interests and blinkered bureaucrats?

Hell no, he's a whipped dog. Either you're with them or you're their bitch.